Tuesday, February 26, 2013

The protest is about workers in Syarikat Armstrong Auto Parts Sdn Bhd., Tikam Batu and Armstrong Auto Parts
Sdn Bhd., Prai, companies making automotive parts, and it was the 2nd protest by National Union of Transport Equipment and Allied Industries Workers (NUTEAIW) (sumber Labour Bulletin, MTUC) The 1st protest action was on 8/2/2013, whilst the 2nd was on 22/2/2013

One of the issues were about the loss of allowances that the workers enjoyed before, when the employer now has allegedly lumped into their wages to help satisfy employer's obligation to pay Minimum Wages of RM900 as of 2013.

Note that 82 groups in a statement(5/2/2013) did address the very issue, amongst others, :-

It is very disturbing when MEDIA is now afraid to report the names of the employers and the factories concerned. This must change - be brave. Press Freedom must be respected. Media must be free to report not just the facts but also the viewpoints of people, and this is also an OBLIGATION for the people of Malaysia have a right to know.

Sunday, February 24, 2013

NUBE (National Union of Banking Employees) have been picketing for worker rights and justice but alas, it is doubtful that Malaysian TV or media even covered this. It demonstrate the bias against the ordinary worker, trade unions and ...in short 'the small people'. NUBE is fighting for the rights of its members.

The CEO of CIMB is Nazir Razak, the brother of the current
Malaysian Prime Minister.

Friday, February 22, 2013

The
Malaysian Bar is astounded at the absurdity of the Malaysian
authorities in detaining Australian Senator Nick Xenophon upon his
arrival on Malaysian soil this morning. He is currently in custody,
having been reportedly refused entry into the country, and will be
deported.

Such
shameful action on the part of the authorities shows the sizeable gulf
between the aspirational statements of the Prime Minister that Malaysia
is a modern democracy, and the irrational actions of the people around
him.

During
the Senator’s visit to Malaysia, he was scheduled to meet
representatives of the Government, the Opposition, civil society groups,
as well as leaders of the Malaysian Bar.

The
authorities are apparently relying on section 8(3) of the Immigration
Act, which stipulates the classes of prohibited immigrants, as the legal
basis for detention. However, in the public mind the most natural
inference is that the Malaysian Government opposes, and is fearful of,
the Senator's views and comments, as he has been outspoken and critical
of the Government regarding issues of democracy and human rights.1

Criticism
of policy and governance must be respected and received without
reprisal, even if they contain inconvenient and uncomfortable truths.
Any other reaction would be a sign of insecurity, and would disrespect
the rule of law.

The
Malaysian Bar reminds the Prime Minister that action must follow
aspiration. In this instance, the authorities owe an unreserved apology
to Senator Nick Xenophon and must promise such an incident will not
happen again, to him or any other visitor, merely on the basis of their
views.

The
Malaysian Bar also calls on the Government to allow the Senator entry
into the country, and to assure his colleagues that they will be
permitted entry as well.

Wednesday, February 20, 2013

Will the Pakatan Rakyat include in their upcoming election manifesto (PRU Manifesto) the abolition of the contractor for
labour, the abolition of the usage of short-term employment contract - to ensure security of employment tenure until retirement age for workers in Malaysia - it is not enough to just talk about ensuring justice in broad terms with no specifics at all.

Now, these is the major demands of workers and unions in Malaysia, a fact also backed by the numerous protests by MTUC and workers, the issuance of media statement(see below) on 28/10/2011, Malaysia Must Protect Worker and Union Rights, and withdraw proposed unjust amendments to Employment Act - Labour Suppliers Should Not Be Employers - that was endorsed by 115 groups, and the media statement on 3/5/2012, entitled 'Abolish the ‘Contractor for Labour’ system- withdraw the 2012 amendments to Employment Act 1955' endorsed by 93 groups. The assurance by Pakatan Rakyat, by insertion in their election manifesto or by making a public statement would be very re-assuring to workers and unions in Malaysia. The BN government just ignored it... would the Pakatan be different?

The future of Malaysian workers depend on this - not just those currently in employment

We call for the abolition of the contractor for
labour and their practices and that all workers, currently supplied by these 3rd
party manpower/labour suppliers (contractor for labour) who are still not
direct employees of the principal employer be immediately made employees of the
said principal and be accorded same benefits and treatment as accorded to all
other employees without discrimination, including the right to form/join trade
unions or afford protection and entitlement to the benefits accorded through
their respective Collective Agreements.

We call for the abolition of precarious employment,
and for retention of a just 2-party employment relationship between principals
and workers, and for the respect of worker and trade union rights.

Joint Statement – 3/5/2012

Abolish the ‘Contractor for Labour’ system

Withdraw the 2012 amendments to Employment Act 1955.

We, the undersigned 93 trade unions, civil society groups and organizations object to the actions of the
government of Malaysia in destroying direct employment relationship between the
principal, as employer, and their workers, as employees, with the latest
amendments to the Employment Act 1955.

The Malaysian Trade Union
Congress (MTUC) , which not only represents the about 800,000 unionized
workers but also the over 12 million workers in Malaysia, have strongly and consistently opposed the
proposed amendments since it was first tabled in Parliament vide Bill No:
D.R.25/2010 in July 2010, which the government later withdrew. The government
re-introduced the Bill with minor changes in June 2011 vide Bill No:
D.R.15/2011. MTUC came out even more strongly and also picketed at the
Parliament House on 3rd October 2011 and in spite of strong
resistance from many quarters, including on the Dewan Rakyat floor, the controversial Bill was passed
on6th October 201, did finally
come into effect on April 1st 2012.

We would like to address just
one of several aspects of the new amendments that is the main bone of
contention, i.e. the introduction of the new provision for the definition of
“contractor for labour”.

With
the amendment, the contractor for labour will be the third party (or the
middleman) who will come in between the now direct employment relationship
between the owner-operator of trade or business (defined as the “principal”)
and their worker-employee.

BACKGROUND

The
Employment Act 1955 was introduced before independence (Merdeka) by the British
Administration effectively abolishing indentured labour, bonded labour and the
“kanggani” system in Malaya. (collectively then known as the “contract system”).
The Act also did establish two very important principles of law which are
considered sacrosanct to this day. They are, security of tenure –
ensuring permanence of employment, and proprietary right to the job
– where termination of worker, shall be only with just cause and excuse and by
due process.

The
employment scenario in the country began to change in the early 1990s. In 1992
the government allowed migrant workers for the construction and plantation
sector. In 2000, it was extended to manufacturing and service (hotel and
restaurants) sectors and in 2002, it was extended to all sectors.

Originally
migrant workers were employed directly by the principal employer but this started
to change in 2005, when the Cabinet Committee on Foreign Workers in its meeting
on 5-July 2005 agreed to the recruitment of foreign workers through outsourcing
companies (now known as ‘Contractor for Labour’ in the amended Act). The issuance of these outsourcing licenses
was strangely done by the Ministry of Home Affairs, not the Ministry of Human Resources. There are today about 277
registered labour outsourcing companies in the country today. (The Star,
23-Feb 2010).

This
establishment of the outsourcing companies allowed for the re-emergence of the old
‘contract system’. It opened doors resulting in a direct assault on
the basic foundation of labour rights, the undermining dignity of labour, perpetuating
the establishment and operation of dehumanized and bonded labour. The practice,
which started with migrant workers, was then extended to local workers.

These
outsourcing companies recruited local workers and migrant workers, some on fix
term contracts, with terms and conditions usually less favourable than that of workers
directly employed by principals.

The incidence of principals
using workers supplied by outsourcing companies is growing. The principal company pays the outsource
company an agreed sum of money for the number of workers supplied, whether they
be local or migrant workers. The principal company effectively is able to avoid
the employer’s duty and obligation to ensure their workers’ rights and welfare
are protected. This practice also saved principal company money that would have
ordinarily been expended for workers like medical cost, insurance, bonus, wage
increments, retirement benefits, transportation and accommodation, service
awards, and several other benefits. It also allows them to evade statutory
contributions to the Employees Provident Fund and for social security schemes.
The principal company also evades all obligations and safeguards in law when
workers are hired or terminated, including domestic inquiries and lay-off and
termination benefits. If the principal wants to now get rid of workers, it now merely
have to inform the outsource company.

To convert the workforce
from permanent employees to short-term
contract employees, and now outsourced workers, most principals either retrenched
their workers, used “voluntary separation schemes” or other methods, or simply
terminated their employees substituting them now with workers supplied by the outsourcing companies.

REASON FOR THE AMENDMENT

These
outsourcing companies have been allowed to operate outside the law with no law
regulating them. Even though they were manpower/labour suppliers, they were not
created under and/or regulated by the Private Employment Agencies Act 1981,
which would have also ensured these manpower/labour suppliers would only provide workers and not become
employers of workers supplied.

The
recent amendment to the Employment Act is to give these outsourcing companies
statutory recognition under the Employment Act, and at the same time institutionalize
and legitimize employment through the outsourcing companies, which now legally will be legally known as the “contractor
for labour”.

A
primary reason for the creation of the ‘contractor for labour’ and the
introduction of labour outsourcing is to stifle workers and trade unions
capacity to demand and negotiate for better rights and benefits. The MTUC
Memorandum to the HR Minister dated October 7, 2008 refers to an interview with Datuk Ishak Mohamed, the Enforcement Director of the Immigration
Department that was published in New Straits Time, July 20, 2008, where he, amongst others,
said, ‘…outsourcing is good as it will attract foreign direct
investment. Investors
do not want unions to be formed in their establishments. Through outsourcing,
it would be difficult for unions to be formed as outsourcing company, and not
the factory, would be the employer…’
is indicative of the intention of the government.

SUB-CLASS
OF WORKERS.

The creation of this new sub-class of workers, who
are not considered employees of the principal, also jeopardizes existing employment
relationship between the principal and their current worker-employees, likewise
the relationship with their trade unions. Today, these new sub-class of
workers, made up of both local and migrant workers, are found in most
workplaces, including even government-linked companies, whereby in some
factories they currently make up about 50% of the total workforce. Trade unions are
being weakened, and their bargaining powers for better rights and benefits for
workers are slowly eroding by the increasing presence of workers who are not
employees of the principal, and also by the loss of security of tenure created
by short-term contracts.

‘Contractor for labour’ is
actually outsourcing of labour
which is very different from outsourcing
of work. Outsourcing of work is when principal employer outsources some
specified work or operations which are not their core operation, to another
company who carries out the work for the principal using their own employees
under their own control and supervision. For example, in several manufacturing companies,
cleaning, turf/gardening, canteen and security services are examples of
outsourced work. This outsourcing of work is legal, and the workers of those
who are doing outsourced work are protected by the Employment Act.

Contrary to the principle that workers doing core
operation work should be employees of the principal, this amendment to the Act now
allows the ‘contractor for labour’ to supply workers to perform the
core operation under the control and supervision of the principal’s supervisory
staff and managers. The ‘contractor for labour’ merely collects the salary of
the labour supplied and apportions a part to himself and pays his workers, usually less than the
workers who are under the direct employment of the principal, though they do
the same work. The principle of equal pay for equal work is thus breached.

The principal, who is
considered not the employer of the workers supplied, absolves himself of all
liabilities and employer’s obligations with regard these workers supplied by
‘contractor for labour’ who are working for the principal’s benefit,

“…Any person who enters into contract for
service with a principal to supply employees required by the principal for the
execution of the whole or any part of any work for the principal in any
industry, establishment or undertakings other than the agriculture
undertakings, is exempted from sections 31, 33A, 69 and 73 of the Act...”

However, the words used in the said exemption order,
which by the way also did not include the amendment in section 2, which was the
very amendment that gave statutory recognition to the ‘contractor for labour’
and its practices, only further affirms the contractor for labour and their
practices. The exempted sections referred to in the said Order merely dealt
with ancillary matters like registration of employees when supplied to
principal and priority of debt. The exemption order also would deny access to
justice for workers now being supplied by these ‘contractor for labour’ in all
the exempted sectors.

MTUC and all groups that opposed the amendments were
not appeased by this exemption order, and continue their objections to the
‘contractor for labour’.

PROTEST

We strongly object to the ‘contractor of labour’
system. All workers that work under the control and supervision of
the principal must be the employees of the said principal not some third party. The
Malaysian government’s action is in breach of article 8 of the
Federal Constitution. In 1998, Malaysia also ratified the ILO Declarations on
Fundamental Principles and Rights at Work but this amendment is incontravention of the said Declaration. Further,
it also is in contravention of the ILO’s Decent Work Agenda which Malaysia has committed to.

The International Trade Union Confederation (ITUC), many
trade unions and civil society groups, also opposed, and still oppose this
amendment. The Malaysian Bar also recently passed unanimously a resolution on
March 10th 2012, amongst others, calling for the maintenance of existing 2-party employment
relationships, and also that labour suppliers and/or contractors of labour
should never be or continue to be employers of workers after they are supplied,
accepted and start working at the workplaces of principals.

The contractor for labour and their practices should
not be allowed in any sectors including the plantation and agricultural sector.

DEMAND

We, therefore, demand for the repeal of all
amendments to the Employment Act 1955, in
particular the amendments to section 2, 31, 33A, 69, 73 brought about by
Employment (Amendment) Act 2012 [ACT A1419] relating to the ‘contractor for
labour’ and their practices, and pending
repeal for an immediate stopping operation of the said amendments.

We call for the abolition of the contractor for
labour and their practices and that all workers, currently supplied by these 3rd
party manpower/labour suppliers (contractor for labour) who are still not
direct employees of the principal employer be immediately made employees of the
said principal and be accorded same benefits and treatment as accorded to all
other employees without discrimination, including the right to form/join trade
unions or afford protection and entitlement to the benefits accorded through
their respective Collective Agreements.

We call for the abolition of precarious employment,
and for retention of a just 2-party employment relationship between principals
and workers, and for the respect of worker and trade union rights.

We, the undersigned 115
organizations, groups and networks are disturbed that the Malaysian
government has proceeded to table, and get it passed speedily on
6/10/2011 at the Dewan Rakyat (House of Representative) the Employment
(Amendment) Bill 2011 despite protests from workers, trade unions and
civil society. The proposed changes to the Employment Act would be most
detrimental to worker rights, trade unions and the existing just direct
2-party employment relationship between worker and end-user (the
principal). Malaysia’s action goes contrary to justice. In many
countries employers have been wrongly trying to avoid/disguise
employment relationships by way of contracts/agreements and triangular
relationships, and Malaysia rather than fighting against this negative
trend is now trying to legalize it, hence showing itself to be
anti-worker anti-unions.

We
note also that the amendments would result in discrimination at the
workplace, as many workers at a factory, plantation or any workplace
would end up being no longer employees of the owner-operator of the said
workplace, also referred to as the principal or end-user, but would
remain employees of the supplier of workers, known as ‘contractor for
labour’. Workers doing the same work at the factory, would be treated
differently in terms of wages, work benefits and even rights by reason
of the fact that their employers are different. This will also go
against the Malaysian Federal Constitution that guarantees equality of
persons. We advocate that all workers working at a factory or workplace
are entitled to be treated equally in terms of wages, work benefits,
rights, union rights, reliance on collective agreements and other
entitlements.

The
proposed amendment would also destroy direct employment relationships
between owner-operator of workplaces, being the principal, and the
workers that work there producing the product or providing the services
from which these principals derive their profits. A just employment
relationship dictates that all workers should be employees of the
owner-operator employer not some other third party labour supplier,
whether they be known as ‘contractor for labour’, outsourcing agent or
by any other name. The relationship must be a direct relationship, to
the exclusion of all third parties, between the employer who needs
workers to do the work to produce the goods of their business for
profits, and the workers directly who provide the necessary labour as
required in exchange for fair wages and other benefits. The availability
of short-term employment contracts is another reason why there is no
need to legalize triangular or other employment relationships in
Malaysia through the creation of the ‘contractor for labour’.

To
fight for decent wages and rights, and to be able to negotiate and get
better working conditions and other work benefits, workers at a
workplace would generally come together collectively or as a union to be
able to negotiate from a stronger position with employers, and this
would result in agreements or ‘collective agreements’ between employers
and workers (or their unions). If the amendments proposed become law,
then many workers at the factory would effectively lose their rights to
be able to form or be members of the trade union at the workplace, or
the right to directly and effectively negotiate with the principal who
effectively controls the work place, working conditions and benefits.

If
the proposed amendment becomes law, effectively it will also weaken
existing workers and unions, by reducing their negotiating power for now
when a strike or a protest in called, there will be other workers of
other third party employers who will continue to work normally thus
making worker struggle for better rights almost impossible. This
proposed amendment is a ‘union busting’ exercises and allows employers
to utilize ‘divide and rule’ tactics to counter legitimate demands of
their workers and avoid employer obligations and responsibilities.
Another unjustifiable proposed changed is the delay of payment of
overtime and work on rest days by a month.

With
regard to sexual harassment, the new provision provides only for
inquiry by employer even when the alleged perpetrator is a member of the
management, a partner, shareholder and/or director of the employer’s
business, and provides no clear right of appeal to the Labour Courts or
the High Court. Note that other worker rights violations are currently
all dealt with by the definitely more independent Labour Department or
Industrial Relations Department. Remedy for the victim of sexual
harassment is also absent, save maybe the right to resign without the
need to give the required notice when the perpetrator is a sole
proprietor.

The
Malaysian Trade Union Congress (MTUC), which represents over 800,000
workers of member unions, who is also is the accepted workers
representative in Malaysia, picketed calling for the withdrawal of the
amendments on 3/10/2011, and apparently despite the Minister assuring
them that the amendment will only be tabled at the end of the month, was
suddenly rushed and passed at the Lower House of Malaysia’s Parliament
on 6/10/2011.

Malaysia
has the Private Employment Agencies Act 1971, whereby these agencies
rightfully get workers for employers, who then pay them a fee for the
service, and once workers are received by the employer, these workers
immediately become employees of the said employer. The amendments will
creates a new kind of labour supply companies who will continue as
employers of the workers even after they start working at the workplace
of the principal, and this is unacceptable. All companies in the
business of finding workers for companies that need workers to produce
their products or for their business must be private employment
agencies, and must never assume or retain the role of employers.

As
the said Bill still needs to be passed by the Senate and receive royal
assent, before it becomes law, we call on the Malaysian government to
act in the best interest of workers and their unions and immediately
withdraw this unjust proposed amendments to Employment Act 1955.

We
call on Malaysia to immediately discontinue its policy of recognizing
outsourcing agents, and act immediately against practices of some
employers and outsourcing agents that try to avoid/disguise employment
relationships to the detriment of workers and unions.

We
call on countries and regional bodies, companies, ILO, trade unions
and persons to do the needful to ensure that worker and union rights,
not just of local but also migrant workers, are protected in Malaysia,
and that the employment relationship continue to be between
owner-operator end user employers who actually need workers to do work
and the workers that work there to the exclusion of any third party
labour suppliers or ‘contractors for labour’.

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